The Ombudsman's final decision:

Summary: There is no fault in the Council’s investigation of an anti social behaviour complaint against a neighbour. The Council has proposed mediation and to pay the partial costs of a fence to prevent access to a private driveway. The Council’s management of its rental housing, including tenancy breaches and position of paths/rights of way is outside the Ombudsman’s jurisdiction.

The complaint

The complainant, whom I shall refer to as Mrs B, complains the Council has not investigated her complaint about how Wolverhampton Homes handled her anti social behaviour (ASB) complaint.

What I have investigated

I have investigated events from June 2017 to June 2018. The final section of this statement contains my reason for not investigating the rest of the complaint.

The Ombudsman’s role and powers

We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)

We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

What I found

Mrs B owns her property. Her neighbours are tenants of Wolverhampton Homes and have lived there for over 5 years. Wolverhampton Homes is an Arms Length Management Organisation (ALMO) which manages homes on behalf of Wolverhampton Council (the Council).

Mrs B’s house joins onto the neighbour’s house. To get to both houses there is one path. On one side of the path is a hedge and the neighbours garden. On the other side of the path is Mrs B’s open plan private driveway, with no dividing fence.

The neighbours have no separate path to their property. The neighbours have a right of way over the path, but not over Mrs B’s drive

There is an alleyway between the two houses on the ground floor. The alley is owned by Mrs B but the neighbours have a ‘right of way foot only’ down the alley to their rear garden.

In July 2017 Mrs B complained about a number of issues to Wolverhampton Homes (stage one complaint) including that her neighbour was walking on her drive, rather than the shared path, the neighbour had failed to cut the hedge, the neighbour’s behaviour was unacceptable and that her neighbour was leaving her bins in a way that blocked Mrs B’s driveway.

Officers visited Mrs B at the beginning of July 2017. Mrs B made a formal complaint on 12 July 2017 and another officer visited her at the beginning of August 2017.

Wolverhampton Homes sent a response to Mrs B’s stage one complaint on 4 August 2017. It said that it had spoken to the neighbour. It had told the neighbour:

To cut back the overgrown hedge near the path.

Not to block the path with bins.

Not to park (or allow visitors to park) on Mrs B’s drive.

That she had a right to walk on the path and alleyway but not Mrs B’s drive.

Wolverhampton Homes informed Mrs B that it had referred her complaints about her neighbour’s behaviour to the Council’s anti-social behaviour team. It advised her she could apply for a paint ‘H’ marking across the road in front of her driveway. Wolverhampton Homes informed Mrs B that it did not consider her request to create a new path for the neighbour was reasonable.

Officer X wrote to Mrs B on 29 September 2017. Officer X acknowledged that Mrs B believed that the neighbour was deliberately walking on her drive to cause her distress. The neighbour said any encroachment was accidental due to the layout of the properties and she would try not to in future. Officer X said that she accidentally walked over the driveway and that it was easy to do.

Officer X offered both parties mediation but says both refused. Mrs B says that she has not refused mediation. Officer X said that the ASB team had no evidence that the neighbour (and visitors) were encroaching deliberately onto the driveway to cause harassment and distress. So, Officer X said no legal action could be taken on the matter. Officer X proposed to visit to see if some fencing could be put up to provide a clear boundary, perhaps partly funded by the Council.

Mrs B replied on 4 October 2017, which Wolverhampton Homes replied to in response to a stage 2 complaint. Mrs B also emailed the Council on 6 November 2017 to explain that she had reported an incident to the Police. Mrs B said that her neighbour swore and racially abused at her.

The Council would arrange for a white ‘H’ marking to be painted on the road.

The overgrown hedge would be cut back.

The Council would assess the cost of an independent path.

The Council would offer Mrs B and her neighbour mediation, as it did not consider any further legal action could be pursued against the neighbour as there is no evidence encroachment onto the drive was deliberate.

Officer Y, a manager at Wolverhampton Homes, wrote to Mrs B on 4 December 2017 after she met with Mrs B. Officer Y said that the Council had decided that installing a separate path for the neighbour would not be carried out as it was not cost effective. The Council would also not agree to restrict the neighbours access to the alleyway.

Officer Y said that the Council would arrange for the hedge to be cut back.

Wolverhampton Homes wrote to Mrs B on 17 December 2017 in response to an email. It said that it did not feel it was cost effective to install an additional pathway.

Mrs B said the hedge was cut back to her satisfaction on 11 January 2018, but the neighbour was continuing to walk on her drive and block it with her bins.

Officer Y wrote to Mrs B, after a meeting, in March 2018. Officer Y said that she would carry out a full review of the case. She also said that Wolverhampton Homes would pay half the costs of fencing off the pathway and putting in gates to Mrs B’s drive.

Officer Y sent a fencing plan to Mrs B and her neighbour in April 2018.

Wolverhampton Homes sent a final formal response to Mrs B on 11 May 2018. This said that:

The anti social behaviour team understood that people walking across Mrs B’s drive, parking slightly over the H marking or cars stopping in the road was annoying her. But the Council had no evidence it was being done deliberately to cause harassment and intimidation. There was no independent evidence to support her allegation about a racial incident that was reported to the police. So, the anti-social behaviour team did not intend to take further action, other than the offer of mediation.

The Council would offer to pay half of the cost of fencing and driveway gates as shown in a diagram.

The Council considered Mrs B’s complaints and video footage in detail in the file notes, which I have not been able to share with Mrs B. It is clear that in June 2018 the Council considered each incident of people walking on her drive, parking near the H marking and position of the bins. The Council reviewed the evidence and determined that there was no anti-social behaviour.

My analysis

Mrs B first complained about her neighbours in 2013. The Council closed the complaint and Mrs B did not pursue the matter then. If Mrs B was dissatisfied at the time, she could have made a complaint to the Ombudsman. I see no reason to investigate matters that occurred 5 years ago now.

Mrs B complains that matters are still ongoing. However, I am not able to investigate the Council’s day to day running. So, I am investigating events up until June 2018, when the Council sent me information about the complaint.

Anti-social behaviour

Conduct that has caused, or is likely to cause harassment, alarm or distress to any person;

Conduct capable of causing nuisance or annoyance to a person in relation to that persons occupation of residential premises

Conduct capable of causing housing-related nuisance or annoyance to any person.

The ASB policy includes a section relating to a Council tenant’s tenancy agreement. The Ombudsman cannot investigate alleged breaches of tenancy because that is management of social housing which is outside our jurisdiction.

Section 8.1 of Wolverhampton Homes ASB policy says that ‘Early and informal interventions’ lists a range of interventions to deal with allegations of ASB. One such method is mediation. In our experience mediation is an effective method of resolving issues between neighbours.

Section 8.2 of Wolverhampton Homes ASB Policy lists ‘Legal actions’, a list of the legal powers available to tackle ASB. This section of the policy states: “Where there is sufficient evidence and legal action is proportionate, the following legal tools may be considered ….”; these legal tools include civil injunctions and the instigation of possession proceedings.

In response to my enquires the Council has said that ‘given the nature of the matters Mrs B is complaining about it would not be proportionate to pursue formal legal/tenancy action against the neighbour. There is no evidence to suggest that the actions of the neighbour (and/or her visitors) are deliberate. Legal advice provided supports this and recommends both parties should be offered mediation. In this particular case, mediation has been offered to both parties but has not been accepted’.

The legal advice I have seen (dated 3 October 2017) does say that mediation should be offered to both parties. It then says that ‘in terms of the behaviour Mrs B complains about, the Council should use its general ASB powers if no improvement is made’. It says the Council may have to consider a possible injunction (if it feels that the behaviours are causing Mrs B sufficient alarm and distress, which the evidence indicates it is).

Wolverhampton Homes investigation of Mrs B’s complaint has been unusual as it progressed quickly to a formal complaint, with little prior investigation by officers. It has also been confused at times with correspondence between different officers, councillors and complaints officers. However, the Council has met with Mrs B and her neighbour. The file notes show it has considered all the evidence including Mrs B’s logs, Mrs B’s view on an alternative pathway and obtained a legal opinion on the options available to it. It has reached a final decision, offering mediation and half the costs of a fence.

Mrs B believes that her neighbours actions are deliberate harassment and victimisation. She wants the Council to take legal action against her neighbours.

It is not my role to make a judgement on what action the Council should take, if any. My role is to determine whether there has been any fault in the Council’s investigation of the complaint, that has led to injustice to Mrs B.

I can find no fault in the Council’s investigation. It has considered all the available evidence and reached a view that legal action is not appropriate at this time. It has offered mediation and half the costs of a fence to separate the path from Mrs B’s driveway. Legal action would always be a last resort and so I can see why Council’s would consider other options, such as mediation and a fence appropriate in the first instance. Clearly, if the problems remain after these options have been tried, the Council can consider the matter again.

Mrs B has said that the Independent Police Complaints Authority are now investigating her complaint against the Police’s response to her complaints about racial harassment and hate crime.

Location of the fence and path

Mrs B would prefer her neighbours to have a separate pathway entirely. She would like the Council to remove its tenants right of way over the path and alleyway. The Council has said that it does not intend to do this as the tenants, the Council and any future occupiers would lose the right of access to the rear garden without going through the house.

The Ombudsman does not have jurisdiction over the Council’s management of its housing stocks, so cannot investigate the placement of the path or management of rights of way. Different officers mentioned the possibility of a separate path to Mrs B at different times, which did lead to some confusion and perhaps raised her expectations but the Council has now clearly set out its decision.

Final decision

Parts of the complaint that I did not investigate

I have not investigated Mrs B’s complaint about the Council’s investigation of her complaint in 2013. Mrs B has not complained about this issue until now to the Ombudsman. This is a late complaint and I have seen no good reason to accept it for investigation now.

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